The ruling in the Romanian court comes just months after the European Commission finally acknowledged the secret protocol issue in its regular CVM report on the country’s progress, a measure that both Romania and Bulgaria are subjected to by the European Union due to concerns that their justice systems are far behind EU standards.  Yet the Commission was far from being robust enough in its handling of the protocol issue.  They essentially tried to dodge the issue by claiming that the EU has no jurisdiction over intelligence matters. This response was at best disingenuous.  Yes, the protocol question involves the intelligence services but there is no question that it is also intrinsically linked to human rights and judicial independence in Romania. The democratic obligations for EU membership were very clearly set out in the Copenhagen criteria of 1993. The rule of law and human rights are central to those criteria

Much has been said about whether or not Romania is fit to hold the current Presidency of the European Union, but there appears to be a reluctance in Brussels to tackle the issue of the protocols. Their very existence undermines judicial independence and the separation of powers. The web of protocols includes secret and illegal agreements between the SRI and other agencies, including the Superior Council of Magistracy, the Judicial Inspection and the High Court of Cassation and Justice. The practical implications of these protocols are clear to see. Almost two-thirds of Romanian judges have been investigated by the Anti-Corruption Directorate (DNA) over the last four years. These cases against judges remain open and ongoing, meaning that the DNA and their partners in the intelligence services, have an unconstitutional sway over the Romanian courts, something that the European Commission felt unable to face up to in the CVM report.  No other European country permits such a role to be played by their intelligence services and there can be no question that Romania is failing to meet European standards in this area. But it seems that the European Commission did not even want to listen to the Romanian judiciary when they raised the alarm by saying “the rule of law is incompatible with the administration of justice based on secret acts”.

There is good reason for the level of concern that the existence of such protocols provokes in Romania.  The country still has vivid memories of the repression of the Ceausescu era and the terrifying power held by the Securitate, the intelligence services of that time.  It was with this in mind that the country chose to forbid the intelligence services from having a role in the criminal justice system and this was enshrined in a law in 1992 that stated “the SRI cannot carry out criminal investigation actions” apart from issues of national security, when they are permitted to play a supporting role.

There is a huge practical consideration facing Romania:  What are the implications of the Constitutional Court ruling for the thousands of cases that took place during the time period that these secret protocols have been in place? Brussels too must face up to the fact that the country currently holding the EU Presidency currently has potentially thousands of victims who are imprisoned as a result of being targeted under these protocols.  There was already alarm in Romania when the parliamentary committee confirmed the existence of these protocols.  Now the Constitutional Court ruling confirms that alarm as being justified and neither Bucharest nor Brussels can ignore that fact that the protocols exist and that they undermine rights and the rule of law in Romania.

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Regarding Brexit, Romania’s Permanent Representative to the EU, Luminita Odobescu, has said that they are watching events in the UK “very closely”.  The worst case scenario of ‘No Deal’ appears an ever increasing possibility and Ms Odobescu said that Romania is preparing itself for that outcome.

Whilst Romania takes on these unprecedented international responsibilities, concerns have been raised repeatedly about the country’s capacity to rise to these challenges. One of Romania’s self-proclaimed goals for their presidency is a “Europe of Common Values”, with an emphasis on “democracy, freedom, human rights and respect for human dignity”. This coincides with a time when the European Commission was forced, in its publication of its annual assessment of the Romanian justice system, to acknowledge secret protocols between the Romanian Intelligence Service (SRI) and various law enforcement, judicial and administrative agencies. Over 500 such protocols were identified by a committee of the Romanian parliament and today 337 of them remain in force. There are as yet unclassified protocols in existence between the intelligence services and the prison authorities,

In Romania, for reasons connected to the country’s painful past under the Ceaucescu regime, the intelligence services were forbidden from involvement in the nation’s criminal justice system, such as its courts.  The protocols show that the intelligence services somehow managed to override these constraints, using protocols to co-opt other agencies to act on its behalf. The intelligence service may not arrest or prosecute people, but with the help of these unconstitutional protocols, they have succeeded in getting others to do their bidding.

A 2018 report written by Emily Barley, Lisi Biggs-Davison and Chris Alderton and published by Due Process and CRCE, showed Romania to be by far the worst violator of human rights within the EU. Romania had a total of 272 violations of human rights found by the European Court of Human Rights from 2014 to 2017.  This means that Romania had over 100 more judgements against it than the next worst country in the EU. Only Russia and Turkey were worse offenders for violating the right to a fair trial among the 47 Council of Europe members.

Romania has also faced criticism for its poor prison conditions. The Due Process report highlighted the 104 violations found in Romania by the European Court of Human Rights for inhuman or degrading treatment, the vast majority of which occurred in detention. The European Court of Human Rights has consistently found that Romanian prisons are overcrowded, with space far below the legally required minimum per person. The report says: “In Romania, case after case has brought disgusting prison conditions to light; with infestations of bed bugs and vermin, inadequate washing facilities for prisoners, and cold, damp, dirty cells being the norm.”

Conditions in detention facilities were in the spotlight in 2018 over the death of former judge Stan Mustata. He had been serving an eight-and-a-half year sentence in Jilava prison after being convicted of taking bribes. His lawyer Lorette Luca has spoken of the inhumane treatment he received despite having serious kidney problems and having undergone dialysis. He was moved, whilst vomiting, in the middle of the night from one prison to another. He later died of a heart attack in Carol Davila civilian hospital in Bucharest. The hospital contacted prosecutors over his death as they were concerned about his prior treatment before his arrival with them. The Mustata case has caused investigations into three Romanian prisons: Rahova, Jilava and Giurgiu. Romania has seen other high profile prison deaths in recent years, including Dan Adamescu, whose death many believe was caused by his prison conditions. He was denied eight out of nine medical requests and when he received medical attention, it was too late.

As the European Union faces such urgent challenges, it is difficult to have faith in a Presidency led by a country who is not fulfilling at home the grand promises it makes for Europe. To have human rights as a cornerstone of one’s EU Presidency when back home the rule of law and human rights situation is bleak, will not inspire confidence in Romania’s EU partners.

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What is most striking is the sensitive area that the CVM report seemed to dance around.  This year has seen a Romanian parliamentary inquiry unearth 65 protocols between the Romanian Intelligence Service (SRI) and the Anti-Corruption Directorate (DNA) and a wide range of other law enforcement, judicial and administrative agencies.  One of these protocols is with the Superior Council of Magistracy (CSM), which is responsible for regulating the activities of judges and prosecutors. This protocol is especially alarming as it points to intelligence services pressure and control over the judicial system.

Another element of concern is that the protocols are used to circumvent constitutional safeguards in the gathering of evidence. A particularly shocking revelation was that the DNA has a confidential agreement with the ANCPI, the public land registry and real estate agency, giving prosecutors direct access to its database. This allows the DNA to obtain personal data without the need for a warrant or any proof of wrongdoing. It is widely accepted that this contravenes Romania’s constitution as well as the European Union’s Charter of Fundamental Rights.

The European Commission could not help but be aware of these serious infringements.  Indeed Frans Timmermans, the first Vice-President of the European Commission, told the European Parliament plenary sitting when he addressed the situation in Romania that an investigation of the protocols is needed.

Yet the CVM report was issued this week and offered a very weak response to the protocol scandal.  It tried to emphasise that the protocols were with prosecutors and shied away from the fact that the court institutions too (including the Superior Council of Magistracy), had such arrangements with the intelligence services.  This fact makes the CVM’s assessment wholly inadequate when it says: « It is the role of the courts to establish whether or not specific allegations of abuses are substantiated and an open and impartial investigation would be needed to establish whether there were systemic failures such as illegal gathering of evidence or illegal influence on magistrates, and whether the existing legal safeguards need to be strengthened. »

How can we expect courts to tackle such allegations when they themselves have protocols with the intelligence services?  It would be laughable if the consequences were not so grave for Romania and for European standards.

One European parliamentarian summed it up perfectly by privately saying: “This section of the report is simply not credible.  The European Commission is treading on thin ice.  They do not deny the existence of the protocols.  The very existence of these protocols is an affront to European principles on the rule of law and justice. To casually suggest that the Romanian courts should check if there are any outcomes from these protocols is a disgrace.  Such arrangements do not belong in a European member state and the Commission should be brave enough to say so.”

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Romania will take over the presidency of the European Union in January 2019, an important step for a country that only joined the EU in 2007, and this will thrust the country under the spotlight in Brussels. When Romania gained EU membership, there were concerns that the country was not ready, in terms of corruption levels and the justice system. Unfortunately, many of those concerns are still valid today and Romania remains under special supervision by means of a cooperation and verification mechanism (CVM). The country has been actively encouraged by the international community to pursue its anti-corruption, with the former head of the anti-corruption unit (the DNA), Laura Kovesi, gaining near celebrity status in Western media for what they felt was her tough approach. But the international community has been negligent in its duty to insist upon respect for human rights and rule of law in the methods used to pursue this necessary anti-corruption campaign.

The DNA has been under domestic scrutiny since the its former head, Ms. Kovesi, was heard on tape in 2017 commanding employees to pursue investigations against the Prime Minster and his colleagues and using the phrase “put pressure” with reference to the government in retaliation for their moves to curtail her authority. This was followed by revelations that two senior DNA prosecutors had in 2015 forced a witness to fabricate evidence against media owner and former MP Sebastian Gita, with the witness being told his family would be targeted unless he cooperated.

There is concern in Romania about the covert role of the intelligence services in directing anticorruption prosecutions. The Romanian Intelligence Service (SRI) carries out 20,000 telephone intercepts on behalf of the DNA every year and initiates DNA investigations. The SRI’s own Dumitru Dumbrava said publicly that the SRI regards the judicial system as a “tactical field” of operations. Both the SRI and the DNA have been criticised for undermining judicial independence.

It was also revealed that protocols were signed between the Romanian intelligence service (the SRI) and the Supreme Court of Justice and Cassation, the General Prosecutor’s office, the Superior Council of Magistrates and the Lawyers’ Bar Association.  These protocols are alarming in terms of human rights, constitutional propriety and conflict of interest.  It is unacceptable by any European standards that the Superior Council of Magistracy (CSM), the body responsible for regulating the activities of judges and prosecutors have a covert relationship that would influence the judges it appoints to rule in the interests of the intelligence services and their partners at the Anti-Corruption Directorate (the DNA).   It is also claimed that the protocols are used to bypass constitutional safeguards in the gathering of evidence. The existence of such protocols makes it difficult to trust the results of the Romanian justice system.

Pressure on the judiciary is another cause for alarm.  Marius Iacob, the First Deputy of the head of the Anti-Corruption Directorate (DNA) has publicly stated that the DNA is handling 300 files regarding magistrates. If we consider that a file can include two or three magistrates and that one magistrate might handle ten cases a year, this means the potential for magistrates being vulnerable to pressure or influence in the cases they hear is huge.

A recent report written by Emily Barley, Lisi Biggs-Davison and Chris Alderton and published by Due Process and CRCE, shows Romania to be the worst in the EU in terms of human rights violations. The European Court of Human Rights found a total 272 violations from 2014 to 2017.  In terms of inhumane or degrading treatment, Romania ranks consistently behind only Russia in the Council of Europe. For violating the right to a fair trial among the 47 Council of Europe members, Romania lags behind only Russia and Turkey.

Prison conditions are dire in Romania, with the Due Process report highlighting the 104 violations found in Romania by the European Court of Human Rights for inhuman or degrading treatment, most of which took place in detention. The overcrowding of Romanian prisons has drawn much criticism from the European Court of Human Rights. This is also commented upon by the Due Process report: “In Romania, case after case has brought disgusting prison conditions to light; with infestations of bed bugs and vermin, inadequate washing facilities for prisoners, and cold, damp, dirty cells being the norm.”

Conditions in detention facilities made domestic, if not international, headlines when the Director of Rahova penitentiary hospital was charged, four employees detained and another four placed under house arrest, accused of committing violence against inmates. The charges against the staff included mistreatment and assault. This was followed by the death of former judge Stan Mustata.  He was serving a prison sentence at the Jilava prison facility on bribery charges and received appalling treatment. Despite his known kidney problems, he was moved in the middle of the night from one prison to another whilst vomiting.  He later died of a heart attack in Carol Davila civilian hospital in Bucharest and the hospital notified prosecutors over his death as their concerns about his prior treatment were so grave.  This has led to inquiries being launched and it can only be hoped that these might finally bring some real change.

Of course we must support the Romanian presidency, but we must also use this spotlight to show the country that we care not only about their much-needed anti-corruption campaign, but also the manner in which they conduct it. Current standards regarding human rights, rule of law and judicial independent do not meet our expectations for an EU member, let alone president of the Council, an absolutely crucial EU institution in Brussels.

The post Romania’s long road to justice appeared first on Brussels Express.

After being extradited from England, a 33-year-old man convicted of theft fell ill and died in a Romanian prison. He had serious health problems.

His legal team have explained that he was convicted in England for theft, then was extradited to Romania for another sentence received here, also for theft.  The theft in Romania was alleged to be from a shop where the mentally ill young man “thought he had seen the devil”. According to his lawyers, when he was admitted to the Rahova Prison Hospital, he received no treatment apart some sleeping pills.  It is understood that this deprivation of his medication led to respiratory failure.

“We tried to persuade them for over three days to administer the proper medication, while his health worsened. It wasn’t until the 28^th of December that he was transferred to a public hospital”, his lawyer explained.  His legal team accuses the penitentiary employees of refusing to transfer him to the Nasta Hospital. Eventually, he was admitted to Nasta Hospital, but it was too late and, on January 2^nd, his lawyers were notified that he had died.

The Rahova Prison has confirmed his death but they have so far failed to provide any more details about the case. This is not the first time that the Rahova Prison has been in the news over the death of inmates.  Dan Adamescu, 68, a millionaire businessman who owned one of Romania’s largest opposition newspapers, died in hospital on 24 January 2017 after contracting sepsis at Rahova Prison, where he was serving a four sentence for bribery.  The Romanian authorities continue to refuse to release his autopsy report.

Former Member of the European Parliament Nikki Sinclaire, who sat on both the Subcommittee on Human Rights and the Committee On Women’s Rights And Gender Equality commented “This tragic case again highlights the need for concern about the welfare of detainees, especially those who are vulnerable, and who are extradited back to Romania, given the poor track record of the treatment of prisoners there ».

The issue of conditions in Romanian prisons, and extradition to Romania is attracting increasing interest in EU public policy circles. As recently as April 25th 2017 the European Court of Human Rights (ECHR) condemned Romania’s prisons as “inhumane and degrading”. The Brussels Press Club will host the launch of a new report on Justice and the Rule of Law in Romania at 11.00 am on Monday 22nd January. The Report is due to be published next week by Gary Cartwright the Publisher of EU Today.

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